Follow human rights code on mental health

A court may well yet find it sets a recognized standard of care employers should follow and will be liable if they do not, but for now an employer can follow the Human Rights Code.Photo by
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Contrary to the assertions of the human rights lobby, an employer need not accommodate every employee claiming mental disability unless it meets the definition set out in the Human Rights Code.

While the Mental Health Commission of Canada (MHCC) last month produced its own version of an employer's duty to accommodate, it has yet to receive any consideration from Canadian courts or human rights tribunals. The voluntary national Standard for Workplace Mental Health and Safety, in part funded by the federal government, consists of several initiatives the MHCC wants employers to implement to promote mental health in the workplace.

A court may well yet find it sets a recognized standard of care employers should follow and will be liable if they do not, but for now an employer can follow the Human Rights Code.

Maureen Crowley, a customer service representative at the Liquor Control Board of Ontario, was unnerved by a homeless man following her around her store and leaving her obscene letters. Terrified, she reported this harassment to her employer which, in turn, called the police. As a precaution, the man was prohibited from visiting the LCBO where she worked. She assumed that was the end of it.

A year later, shortly after Crowley was transferred to another store, she encountered the same homeless man. Panicked, she reported the incident to the LCBO and requested a transfer to an area some kilometres away.

The LCBO would only grant a temporary transfer, and not as an accommodation of any mental disability as it did not believe she had one. Crowley, in the employer's view, was merely stressed and in need of a change.

Upset the LCBO refused to permanently relocate her, Crowley applied to the Ontario Human Rights Tribunal. In her application, she claimed that by not permanently transferring her, the LCBO had failed in its duty to accommodate her disability. To buttress her claim, Crowley presented medical notes from her family doctor and reports from her psychologist indicating she suffered from anxiety, stress and a psychological disability.

In rejecting her application, adjudicator Mark Hart of the Human Rights Tribunal of Ontario ruled the LCBO was under no obligation to accommodate Crowley because she did not suffer from any mental disability.

A family doctor or psychologist's note vaguely stating an individual is suffering from a psychological disability is insufficient. To meet the Human Rights Code's definition of mental disability, there must be an exact diagnosis of a recognized mental disability from a health professional.

To avoid mental disability based human rights complaints, I recommend the following:

Document everything Put in writing everything that occurs at meetings with the employee. Make a copy of all medical notes and/or any other information he or she provides. If the employee's behaviour is so uncharacteristic that it signifies a mental disability, you have a duty to inquire as to what may be causing this unusual behaviour and suggest a medical examination. Given the stigma associated with mental health claims, it is naive to expect employees, even if they are aware of their condition (and many are not), to communicate the need for mental health assistance to employers. Human rights tribunals recognize this fact.

Request detailed medical notes The usual medical note from a general practitioner stating an employee is stressed out and cannot work is insufficient. Ask the employee to provide a medical report that explains functional limitations and capabilities, and reasons why the condition necessitates such changes. For privacy reasons, medical information should be shown only to your disability carrier or someone designated in the company and cannot be shared with the employee's managers.

Protect yourself If the employee performs poorly and does not provide clear medical evidence, provide the employee with warnings and document his of her lack of performance.

Non-accommodation If you decide not to accommodate an employee based on a lack of mental disability as defined in the Human Rights Code, ensure you have the evidence to support your position. A independent medical evaluation with a psychiatrist can be requested, particularly if you are suspicious of the evidence provided by the employee's doctor.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Hiring in Canada.

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